Should psychiatric hospital patients be permitted to have sex?

A Cuyahoga County court case involving a patient who had multiple sex partners at a psychiatric hospital highlights what one lawyer called "one of the most threatening issues" facing mental health officials.

Sexual hookups at mental hospitals are to some, a right, but to others, an outrage.

Should sex be allowed? How do hospitals decide whether a mentally ill patient has the capacity to consent? How do they police against coerced sex? How do they provide for safe sex practices?

It may be inevitable that patients engage in sexual relations, particularly in state hospitals where they may live for months or years. But it represents a clinical and legal minefield.

Revelations that the Ohio Department of Mental Health tolerates sexual activity in its hospitals led to a hail of criticism in May from Common Pleas Judge Nancy Margaret Russo. The judge, noting that large numbers of criminal defendants populate state hospitals, is asking the governor for a sweeping review of patient safety.

The issue of sexual activity is so thorny that state hospitals are largely on their own to figure out policies. Rules about sex run the gamut. One group of state hospitals has a five-paragraph policy that simply discourages sex, while other state facilities spell out procedures on the distribution and disposal of condoms.

One thing on which experts agree: It's a subject that makes people squirm.

"You're getting into the dark secrets of institutions," said Bruce Mason, a Nebraska lawyer who represented patients who were sexually assaulted in state mental hospitals. "Nobody wants to talk about it."

Last month, Russo pulled back the curtain of secrecy, after learning that a 33-year-old woman she had sent to a state hospital was having sex and had been given birth control pills.

Russo had ordered the woman to Northcoast Behavioral Healthcare, a state hospital in Sagamore Hills Township, after finding her not guilty by reason of insanity on robbery and burglary charges.

At a hearing in May, Russo ordered the state to ensure the patient does not have sex again. The hospital put the woman under 24-hour watch. But the patient filed a complaint with the Ohio Legal Rights Service, saying the supervision violates her rights.

The complaint was rejected, but it underscores a fundamental debate about patients' rights

State officials have walked a fine line, saying that sexual activity is discouraged but that some patients are deemed competent to engage in sex.

A three-page sex policy at Northcoast says staff members who stumble on an encounter should ask the patients to stop and should report it to the therapy team. But the policy also allows for sex counseling and distribution of birth control.

"People in our facilities enjoy the same rights as any other Ohioan, and they don't lose those rights unless it's expressly removed for clinical treatment reasons," said Trudy Sharp, a spokeswoman for the state mental health department.

Michael Perlin, a New York law school professor and legal-rights advocate for the mentally ill, argues that "the fact someone is in a psychiatric hospital is in itself not reason to rob them of their sexual autonomy."

But Mason, chief lawyer for the nonprofit Nebraska Advocacy Services, questions whether women in psychiatric hospitals are even capable of consenting to sex. Many have histories of being victimized and traumatized, he said. "We've had women who literally didn't know they could say no."

Dr. Mark Woyshville, a Middleburg Heights psychiatrist, also raised concerns. In a letter to Russo, Woyshville called the state's assertion that some patients are competent to have sex "shocking."

Woyshville, who worked at Northcoast hospitals in Cleveland and Sagamore, said that the state hospitals are filled with men who have criminal histories and that women become " 'willing victims' of testosterone-driven dominance behaviors assumed by the males."

"Sex becomes the only discretionary 'currency of commerce' on the psychiatric unit," he wrote. "Women engage in sexual behaviors unthinkable to them even as they engage in them, for they are coerced."

Speaking to the Cuyahoga case, Mason said that if the patient was not mentally competent, "how can that woman possibly, as a matter of law, consent to multiple sex partners?"

The question is a relevant one at Ohio's nine state psychiatric hospitals. More than half the patients are sent by the criminal courts because they were declared incompetent to stand trial or judged not guilty by reason of insanity.

But the Ohio mental health department said the patient in Russo's case "had capacity to consent, to make choices," said Sharp, the state mental health department spokeswoman.

Dr. Douglas Mossman, director of forensic psychiatry at Wright State University, said a person could be incompetent to stand trial but competent to engage in sex. Hospitals in some cases "accommodate desires of competent patients to engage in sexual activity that is consensual," he said.

The mental health department is working on a standard policy for all state hospitals, Sharp said.

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